Conservatives love "results oriented judges" they agree with

Alongside the historic Republican victories in the House Tuesday, conservatives attempting to block marriage rights for same-sex couples managed to oust three judges in Iowa who overturned a ban on gay marriage. In doing so, opponents of same-sex marriage showed they aren't so much interested in preventing results-oriented judging -- something they constantly rail against as a symptom of liberal judges running wild -- as they are in leveraging it in their favor.

In August, when Judge Vaughn Walker overturned a ban on same-sex marriage in California because proponents failed to provide an effective argument for why the government had a compelling interest in preventing gays and lesbians from getting married, conservatives slammed the Republican appointee as a "results-oriented liberal judicial judge," and an "activist" substituting his liberal sensibilities for the popular will.

Of course the entire point of an independent judiciary is that the law guides rulings, not what is popular. This is precisely why electing judges is a bad idea. Banning same-sex marriage isn't rooted in the Constitution -- indeed it's a straightforward violation of the equal protection clause. But as with laws legalizing slavery and racial discrimination, cultural currents deeply affect how judges view the law. Judges are elected in 38 states, a system that enhances the possibility of capricious and arbitrary interpretations of the law by forcing judges to consider whether or not a particular ruling will force them off the bench.

That kind of "results-oriented judging" is exactly what anti-marriage equality activists are counting on by throwing out the Iowa judges who overturned a gay marriage ban. It wasn't just about Iowa; the point was to send a clear message to any judge whose role is subject to a popular vote that they will be targeted if they don't interpret the law the way the Family Research Center or National Organization for Marriage want them to. The removal of the Iowa judges is a rather perfect example of the dangers of "faction" that James Madison warned about, where matters "are decided not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."

The problem for anti-marriage equality activists is that by relying on this system of might makes right, they're living on borrowed time. Support for same-sex marriage rights has been inching toward a decisive majority for years. It's really only a matter of time before opponents of marriage equality find themselves the minor party, and an overbearing majority of Americans look back at Prop 8 with the same kind of confusion as Plessy v. Ferguson, wondering how such a world could ever have existed.

No, it's not a "straightforward violation" of the Equal Protection clause, despite what Ted Olsen says (Barbara would be ashamed of him). When the 14th Amendment was written, NO ONE would have said it protected deviant sexual behavior.

How about my personal favorite example of a results oriented judging, the great stone justice got pretty hot and bothered about pubescent school girls having no right to hide stuff in their panties. He felt strongly, as a strict constitutional constructivist, would be naughty girls need to know school officials might strip search them at any time, in order to enforce states' interest in zero tolerance, of course.

Clarence Thomas, all for liberties, just not individual or decent liberties.

James Madison indeed warned about the majority infringing on LEGITIMATE minority rights in Federalist #10 (he would never have thought that the Constitution protected deviant sexual behavior either), but he also recognized the potential TYRANNY of an unelected and unchecked judiciary:

"[R]efusing or not refusing to execute a law, to stamp it with its final character... makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper."

The Founders understood that under a broad judicial review, the Judiciary might become policy-makers, which was something they explicitly forbade. As signer of the Constitution Rufus King warned, "the judges must interpret the laws; they ought not to be legislators." similarly declared that the Judiciary was forbidden to "substitute [its] own pleasure to the constitutional intentions of the Legislature." Alexander Hamilton confirmed this in Federalist #81:

"[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution."

This is crazy! The Republicans are well known to be hostile to special considerations for persons of severe, sexual disorientation (a.k.a homosexuals). Republicans do not try to hide their true convictions the way most liberals do to get elected to public office.

YET, Republicans just came roaring back after only two years in the wilderness.

The Obamacrats are cozy with the homosexual agenda and they were wiped off the map.

Please explain!

AND, the liberal affection for outlaw "immigrants" helped to destroy the Obamacrats too.

Speaking of miscegenation and Clarence Thomas, I wonder if he and his tea bagging wife Virginia have pillow talk on the merits of the judicial activism involved in the 1967 SCOTUS case, Loving v. Virginia.

In the original Loving v Virginia ruling, the judge declared, "Almighty God created the races, white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

This is not the same as the Rose Bird situation in California. I, too, remember when she and two other justices were ousted. The difference, however lies in the fact that Bird and Co. were removed for a SERIES of decisions over a considerable period of time that the electorate found unpalatable. The biggest issue was capital punishment. In Iowa, the justices were ousted for ONE, SINGLE decision (a unanimous one at that), as a means of sending a message to other judges across the nation that they had better get in line with the (shrinking) majority or risk their careers. Whatever fears Madison may have had about a tyrranical bench have been more than offset by the public good done by American justices over two centuries safeguarding the rights of minorities from majority oppression.

I've had a vasectomy. When my wife and I have sex, it is therefore "strictly for pleasurable gratification" (and it is very pleasurable and gratifying!). In your view, should our marriage be prohibited by law?

Its very dangerous when judges must answer directly to the people in this fashion. Requiring them to do so compels them to dispense justice in a slanted and biased manner to appease popular sentiment, sentiment that is often emotionally charged and runs counter to clear and rational thought.

It is MORE dangerous to allow judges to become unelected legislators, who "substitute [their] own pleasure to the constitutional intentions ..." Maybe when they legislate from the bench against something YOU like, you will finally understand.

not even a nice try jesgonzo. The similarity between the two is obvious. In both cases the judges sought to thwart the will of the people and were called to account for it.
Let's look at the magnatude of the cases Ms Bird reversed: each on a single murder case wherein she overturned the death penalty. Of course it took several such decisions for the citizens to recognize that their will was being denied.

it just took one very important decision for the people in Iowa to reach the same conclusion as the people in Ca reached. The judges were held accountable. As they should.

and I don't see that the courts in America have performed flawlessly over the past two centuries. In fact several milestone decisions were ultimately reversed. I don't believe that a lack of accountability has resulted in judicial perfection at all. In fact now that the left seeks to use the courts as tool to accomplish what they can't at the ballot box the lack of accountability at the federal level is a major issue for many.

Folks like to imagine that they understand the motivations of others. It is a popular parlor game. it generally goes like this: "They did this to send a message to others..." yeah, right. The people of Iowa threw these bums out because they could.

If Clarence Thomas is such an originalist he should say that Loving vs. Va was wrongly decided. Then he would have to admit to being intelectually honest.

That would mean Clarence and Ginny have engaged in, as Jake calls it deviant sexual behavior.

Posted by: shrink2 Speaking of miscegenation and Clarence Thomas, I wonder if he and his tea bagging wife Virginia have pillow talk on the merits of the judicial activism involved in the 1967 SCOTUS case, Loving v. Virginia.

is so far down the path of intellectual dishonesty as to be beyond hope. Sorry to state it in such an absolute and peremptory way, but that's the fact of the matter. What you say here is simply preposterous and dishonest, Mr. Serwer. I think you actually know that. You are engaged in pure propaganda, as Bernie would say. You aren't doing anything related to informing or clarifying, etc.

I would love to debate what is, and is not, "deviant sexual behavior" just as soon as you let me know if you saw the fact checker about Sarah Palin NOT charging victims for rape (another "deviant sexual behavior") kits?

I've seen that other link too. My question to you, however, can be answered with a simple "yes" or "no": have you seen the following fact checker about Sarah Palin NOT charging victims for rape (another "deviant sexual behavior") kits?

Homosexuality is a natural human variation that crosses racial boundries with known statistical frequency, and according to the scientists who determine such matters that are universally recognized as experts tha American association of psychiatrists homosexuality and bisexuality are normal. The discussion is over no decisive or disorders are involved by definition. The only reason to deny homosexuals and bisexuals the same treatment, that is rights and responsibilities, of heterosexuals is based upon religion or irrational (as in antiscientific) basis. These are arbitrary reasons based purely upon impermissible reasons. Science has spoken and religion can't change that since the USA is not permitted to officially and directly use religion against anyone. The courts will overturn anti gay laws because they lack a rational basis which is the lowest standard for any law to be constitutional. Religous standards are simply irrelevant.

A propensity toward criminal behavior is also a natural human variation that crosses racial boundries with known statistical frequency, and the scientists who determine such matters say that's normal too. Do you at least concede the potential for a slippery slope?

We encourage users to analyze, comment on and even challenge washingtonpost.com's articles, blogs, reviews and multimedia features.

User reviews and comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions.